Judge allows pedestrian hurt in police bike accident to sue city

PHOTOGRAPHER: Steven Cook

A lawsuit against the city of Schenectady over injuries suffered by a pedestrian when a city police bike officer collided with him in 2009 can proceed, a judge recently ruled.

Phillip Clayton contends he suffered a broken clavicle and other injuries as a result and was rendered momentarily unconscious on the evening of Oct. 14, 2009. He is represented by attorney Edward Ryan.

The suit was filed in 2010 and is scheduled to go to trial this fall in state Supreme Court in Schenectady County. The officer was identified in the initial suit as “John Doe,” and his name also is not included in the recent ruling.

Attorneys for the city attempted to have the lawsuit dismissed, arguing that Clayton has been unable to prove the officer acted negligently and that he darted into the officer’s path, allowing no time to react.

In a ruling issued in June, Justice Vito Caruso found that the case must go forward and that a jury must determine the question of liability. Defendants in such motions generally must meet a high threshold to get a case thrown out.

Caruso noted that the officer was unable to estimate his own speed, how long he saw Clayton on the sidewalk before the collision, or the distance between him and Clayton prior to impact.

“Due to the officer’s inability to recall pertinent facts relative to the happening of this accident, … there is no factual support for the officer’s conclusory statement that the plaintiff darted out into the road,” Caruso wrote.

With that, he wrote, it can’t be determined whether the officer was not negligent. A jury must decide that.

The officer also contended he had the green light. Caruso noted that the officer still had to proceed with reasonable care to avoid hitting anyone in the roadway.

Clayton was struck while trying to cross State Street at Clinton Street, according to the suit. He also suffered facial cuts and a concussion.

Clayton has no memory of the incident after being rendered unconscious. But he maintained that he is generally careful to look both ways. He also argued that the evidence suggests he couldn’t have darted out and must have been well into the westbound lane when he was hit.

Ryan last week called the decision sound and straight-forward. He noted the city has filed a notice of appeal, though that was no guarantee of an actual appeal.

A representative of the city declined to comment, wanting to reread the decision first.